## F I L E D United States Court of Appeals Tenth Circuit 

### APR 6 1999 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. TIMOTHY BYRNE,

Defendant - Appellant. No. 98-2027

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D. Ct. No. CR-97-281-BB)
Randolph J. Ortega, Ellis and Ortega, El Paso, Texa s, appearing for DefendantAppellant. David N. Williams, Assistant United States Attorney(John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, appearing for Plaintiff-Appellee.

Before TACHA , BALDOCK , and MURPHY , Circuit Judges.

TACHA , Circuit Judge.

Defendant-Appellant Timothy Byrne was convicted of using telecommunications devices in interstate commerce t o entice a minor to engage in-2-

sexual acts in violation of 18 U.S.C. § 2422(b), an d traveling in interstate commerce for the purpose of engaging in sexual acts with a minor in violation of 18 U.S.C. § 2423(b). The district court sentenced him to twenty-one months imprisonment followed by a three-year period of sup ervised release. On appeal, defendant argues that we should reverse his convict ions because: (1) the district court did not allow his counsel to fully impeach th e complaining witness; (2) the prosecution failed to produce evidence of the distr ict court’s venue; and (3) extraneous material was introduced into the jury ro om. We affirm. During the summer of 1996, defendant met a minor th rough an Internet chat room. At the time of these events, defendant resid ed in El Paso, Texas, and the minor lived in Clovis, New Mexico. The complaining minor testified that over the course of several communications between Texas and New Mexico, defendant arranged a meeting with him in Clovis for the purpo se of engaging in sexual relations. On August 9, 1996, defendant traveled t o Clovis and performed a series of sexual acts with the boy. On May 7, 1997, a federal grand jury returned a two -count indictment against defendant charging him with using telecommu nications devices in interstate commerce to entice a minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b), and traveling in interstate comme rce for the purpose of engaging in sexual acts with a minor in violation o f 18 U.S.C. § 2423(b). During1 Presumably, defense counsel premised this argumenton the fact that the

allegation of venue in the indictment refers only t o Curry County, New Mexico, rather than the city of Clovis. We find this argum ent borders on the frivolous. In any event, we take judicial notice of the fact thatthe city of Clovis is located within Curry County, New Mexico. See United States v. Burch , -- F.3d --, No. 97-1442, 1999 WL 111141, at *5-6 (10th Cir. Mar. 4, 1999) (asserting that judicial notice may be taken for the first time on appeal and that “[w]hether an offense occurred within particular geographic bound aries is an appropriate subject for judicial notice”). -3- Mr. Byrne’s jury trial, the prosecution called the complaining minor to testify. On cross-examination, defense counsel sought to que stion the minor regarding his interactions with another man whom he had met over the Internet. The minor had traveled out of town to meet this man, and authorit ies arrested him as a runaway. After his arrest, he made statements inculpating de fendant. The district court did not allow questioning regarding these events pursuant to Federal Rule of Evidence 403, having found the testimony substantia lly more prejudicial than probative. At the conclusion of the government’s case, defendant moved for a judgment of acquittal, arguing that the government had failed to offer evidence establishing the district court’s venue and jurisdi ction. Specifically, defendant argued that as to both counts in the indictment, th e prosecution failed to establish that Clovis was in Curry County, New Mexico, 1 and as to the enticement count, the government failed to prove that defendant used any instrumentality of interstate commerce within Curry County, New Mexico . The district court denied-4-

defendant’s motion for judgment of acquittal. Finally, during the jury’s deliberation, a juror di scovered extraneous material included within an atlas that had been adm itted into evidence. The material consisted of several computer printouts co ntaining profiles of minors who wished to engage in a homosexual relationship. The juror, without reading the material, sent it out of the jury room. Upon n otice that the jury had received this material, defendant moved for a mistrial. The trial court conducted a hearing on the matter outside the presence of the jury. Du ring the hearing, neither party admitted knowing that the atlas contained extraneou s material. At the conclusion of the hearing, the district court stated that it w ould continue the investigation after the jury returned from its deliberation. The jury rendered a verdict of guilty as to both co unts. After the court read the verdict, but prior to excusing the jury, the co urt, as promised, questioned the jury regarding the extraneous material. The distri ct court also asked each juror individually whether he or she had read the pages. Each responded negatively. Upon completion of the questioning, the court askedthe parties if they desired any further inquiry. Neither side requested furthe r investigation. The district court subsequently excused the jury, denied the mot ion for a mistrial, and entered judgment in accordance with the jury verdict. On F ebruary 10, 1998, the district court sentenced Mr. Byrne to twenty-one months impr isonment followed by a-5-

three-year period of supervised release. This appe al followed. I. Defendant argues that the district court violated h is Sixth Amendment right to confrontation when it restricted defense counsel ’s cross-examination of the complaining witness. “We review de novo whether a defendant’s Sixth Amendment confrontation rights were violated by cro ss-examination restrictions, and whether any such violation was harmless.” Unite d States v. Gault , 141 F.3d 1399, 1403 (10th Cir.), cert. denied , 119 S. Ct. 253 (1998); accordUnited States v. Bindley , 157 F.3d 1235, 1240 (10th Cir.), cert. denied , 119 S. Ct. 1086 (1998). A defendant’s “right to cross-examine witnesses is an integral part of the right to confrontation, [but] it is not an absolute or unlim ited right.” Gault , 141 F.3d at 1403. The United States Supreme Court has recogniz ed that “trial judges retain wide latitude insofar as the Confrontation Clause i s concerned to impose reasonable limits on . . . cross-examination based on concerns about . . . harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall , 475 U.S. 673, 679 (1986); see also Bindley , 157 F.3d at 1240; Gualt , 141 F.3d at 1403. The record reflects that the district court refused to allow questioning only regarding an unrelated encounter the witness had wi th another man and the-6-

witness’ corresponding arrest on runaway charges. The district court found such testimony substantially more prejudicial than probative. We agree. We therefore conclude that the cross-examination restrictions imposed by the district court fell within the bounds permitted by the Sixth Amendment. II. Defendant also argues that the district court erred by failing to grant his motion for judgment of acquittal because the prosec ution did not produce any evidence of proper venue. “We review the denial of a motion for judgment of acquittal de novo, viewing the evidence in the ligh t most favorable to the government to determine if the jury could have foun d defendant guilty of the essential elements of the crime beyond a reasonable doubt.” United States v. Ailsworth , 138 F.3d 843, 846 (10th Cir.), cert. denied , 119 S. Ct. 221 (1998); accordUnited States v. Smith , 156 F.3d 1046, 1055 (10th Cir. 1998), cert. denie d , 119 S. Ct. 844 (1999). However, when the motion ra ises a question of venue, we alter the analysis somewhat, for unlike other subst antive elements of the offense charged, the government need only prove venue by a preponderance of the evidence. See United States v. Carter , 130 F.3d 1432, 1438 (10th Cir. 1997), cert. denied , 118 S. Ct. 1856 (1998); United States v. Miller , 111 F.3d 747, 749 (10th Cir. 1997). Contrary to defendant’s assertion, the record is replete with evidence that establishes proper venue in the District of Ne w Mexico. The evidence2 Defendant apparently argues that he had to use the telecommunications

device within New Mexico to establish proper venue in the District of New Mexico. Defendant is mistaken. Coercion and entic ement in violation of 18 U.S.C. § 2422 is a continuing offense under 18 U.S. C. § 3237 and venue is proper in “any district in which such offense was begun, c ontinued, or completed.” 18 U.S.C. § 3237(a). Because the communications in th is case must have reached New Mexico for the minor to have been enticed, venu e is proper in New Mexico. Cf., e.g. , United States v. Naranjo , 14 F.3d 145, 147 (2d Cir. 1994) (noting that “phone calls from one jurisdiction into another can establish venue so long as they further the ends of the conspiracy.”); United States v. Lewis , 676 F.2d 508, 511 (11th Cir. 1982) (finding that telephone call f rom Florida to Texas was sufficient to establish venue in the Western Distri ct of Texas when the telephone call was in furtherance of the offense). -7- indicates that defendant used telecommunications de vices in interstate commerce to communicate with a minor in New Mexico 2 and that defendant traveled to New Mexico, where he engaged in sexual acts with the mi nor. Thus, the government provided ample evidence from which the jury could h ave found proper venue. Therefore, the district court did not err in denyin g defendant’s motion for acquittal. Moreover, to the extent that the defendant suggests that the jury was not adequately instructed on venue and thus made no exp licit venue finding, we find this argument without merit. Although venue is a q uestion of fact that ordinarily must be decided by the jury, see Miller , 111 F.3d at 749, failure to instruct the jury on venue does not necessarily constitute rever sible error. In Miller , we stated that “failure to instruct on venue, when requested, is reversible error unless it is beyond a reasonable doubt that the jury’s gui lty verdict on the charged-8-

offense necessarily incorporates a finding of prope r venue.” 111 F.3d at 751 (emphasis added). In this case, however, defendantfails to assert or direct our attention to any request for a specific instruction on venue. Consequently, Miller is inapposite. Because defendant also did not obje ct to the lack of a specific venue instruction at trial, we review this claim on ly for plain error. See Fed. R. Crim. P. 52(b); United States v. Meuli , 8 F.3d 1481, 1487 (10th Cir. 1993). As noted above, the record reveals that defendant u sed telecommunications devices in interstate commerce to entice a minor in New Mexico to engage in sexual acts and that he traveled to New Mexico to p erform sexual acts with the minor. These acts established venue in the Distric t of New Mexico and comprised the sole basis for defendant’s guilt. Th e defendant also did not genuinely challenge the location of these acts. We hold that under these circumstances the jury’s guilty verdict necessarilyincorporated a finding of proper venue. Consequently, the district court’s f ailure to fashion a specific instruction on venue in this case does not constitute plain error. Cf. Miller , 111 F.3d at 751 (asserting that even when a specific ju ry instruction concerning venue is requested “[w]here the entirety of the defendant ’s illegal activity is alleged to have taken place within the trial jurisdiction, and no trial evidence is proffered that the illegal act was committed in some other pl ace or that the place alleged is not within the jurisdiction, any defect in failing to specifically instruct on venue-9-

would be cured by the guilty verdict”). III. Finally, defendant claims that the district court c ommitted reversible error when it denied his motion for a mistrial predicated on the submission of extraneous material to the jury. We review the dis trict court’s decision to deny a motion for a new trial under the abuse of discretio n standard. See Anaeme v. Diagnostek, Inc. , 164 F.3d 1275, 1284 (10th Cir. 1999); see also United States v. Robinson , 39 F.3d 1115, 1116 (10th Cir. 1994). “We will th erefore overturn that decision only if that court has abused its discreti on by rendering a judgment that is ‘arbitrary, capricious, whimsical, or manifestlyunreasonable.’” Robinson , 39 F.3d at 1116 (quoting United States v. Wright , 826 F.2d 938, 943 (10th Cir. 1987)). “In determining whether the jury’s exposur e to [extraneous material] during deliberation warranted a new trial, the prop er inquiry for the district court was whether there was the ‘slightest possibility’ that it affected the verdict.” United States v. Wood , 958 F.2d 963, 966 (10th Cir. 1992); see also Johnston v. Makowski , 823 F.2d 387, 389-91 (10th Cir. 1987). Here, the district court conducted an investigation regarding the extraneous material, including questioning the jury under oath . This investigation revealed that a juror discovered several computer printouts containing profiles of minors who wished to engage in a homosexual relationship i nside an atlas admitted into-10-

evidence. After discovering the material, the juro r promptly sent it out of the jury room without reading it. Each juror testified thathe or she did not read the extraneous material. Unlike a photograph, tape, object, or enactment, a juror must have read the printed information to comprehend its prejudicial c ontent. We hold that when extraneous printed material is sent out of the juryroom promptly upon its discovery and each juror has sworn under oath that he or she did not read the material, there is not even the slightly possibilitythat the material affected the verdict. Thus, we find no abuse of discretion in t he district court’s decision to deny defendant’s motion for a new trial. We further note that, contrary to defendant’s assertion, this case is easily distinguishable from United States v. Wood , 958 F.2d 963 (10th Cir. 1992). In Wood , the prosecution utilized a timeline during its cl osing arguments. The jury, during its deliberation, requested a copy of the ti meline, which the court refused to provide. See id. at 966. However, a notepad containing key informat ion regarding the prosecution’s timeline was impermissi bly present in the jury room during its deliberation. See id. Upon discovery, the notepad was open to the page on which the timeline information was written. See id. The district court questioned only the jury foreman who testified thatthe jury did not look at the notes but admitted that he was not in the room duri ng the entire deliberation. See-11-

id. Based on this testimony, the court concluded thatthe foreman’s testimony was inconclusive and that there remained a slight possi bility that the extraneous information could have affected the verdict. See id. In contrast, the jury in this case did not request information similar to the extraneous material and promptly sent the material out of the jury room without reading it. Under these circumstances, no juror wo uld have had the opportunity to consider the information contained in the computer printouts. In essence, defendant asks us to conclude that the jurors lied under oath when they stated that they had not read the extraneous materials. We wil l not indulge this request, for in making our determination regarding whether the d istrict court abused its discretion in denying a motion for a mistrial, “we give due deference to the district court’s evaluation of the salience and cre dibility of testimony, affidavits, and other evidence.” United States v. Robinson , 39 F.3d 1115, 1116 (10th Cir. 1994). The district court had the chance to evaluate the credibility of the jurors and chose to accept the jurors’ statements as being true and conclusive. Conclusion For the reasons discussed above, we AFFIRM the defe ndant’s convictions.